Condon v Katene [1997] QIRC 84 (1997) 154 QGIG 958

958 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 21 March, 1997 ########################################################## QUEENSLAND INDUSTRIAL RELATIONS COMMISSION lndustrw/ Relations Act J990 s. 295 application for reinstatement Scott Andrew Condon AND Pho Katene (No. BIR70 of]996J CHIEF INDUSTRIAL COMMISSIONER HALL 5 March 1997 Termination of Employment Employer Failed to Collect Applicant for Work Termmation at initiatiw of the Employer Reinstatement Not Practicable No Appearance by Respondent Application Granted. REPORT ON DECISION (as edited) In givmg a dcc1s1on for the Hench on 5 March, I 997, Chief Commissioner Hall stated:~ "After reading the affidavit of Scott Andrew Condon. the affidavit of Mervyn Thomas Condon and the affidavit of Elin.1beth Kay Condon and after hearmg \;Is Armitage of counsel. I am satisfied that the applicant. Scott Andrew Condon, was employed by the respondent, Pho Katene, over a period commencing on 22 July 1996 and concluding on m ahout 30 September 1996 to 9 October 1996. I put the date of termination in that unusual form because of the circumstances. The applicant was employed by the respondent to provide assistance in the installation of garage doors. The practice was for the respondent to collect the applicant at hi, parent~' house at 6 a.rn. and to take him to the !-.ite of work. On 2 Oc1obcr 1996 the respondent f11iled to attend at the applicant's parents' re~idenc'e to collect him Later that morning the respondent telephoned the applicant and advanced ce11ain reasons why the apphcant was not required that day. On no subsequent rn.:casion did the respondent call at the applicant's parents' residence to collect him for work. The resp,)ndent ignored all attempts hy the applicant and by the applicant's parents to inquire what was occurring In the end result, on or about 8 (ktober 1996, the applicant's solicitors, Primrose Couper Cronin Rudkm, wrote to the respondent seeking compen,ation in respect of the applicant's unlawful dismissal. There is no doubt that tht~ respondent re.ceived that letter, because the respondent made a telephone call to rhe applicant the following day. 9 October 1996, and spoke about it From time to time in ca:-,cs :-.uch m, thi:-., an i~sue arises whether one is concerned with termination of the relationship of employer and employee or termination of the contract of cmplovment. It has not yet been necessary to resolve the question Ir is not necessary to resolve ii today. In the event that one is concerned with the termmation of the relationship, it was terminated at the initiative of the respondent. when the respondent ceased calling to collect the applicant and onutted to respond to telephone inquiries. If one is concerned with termination of the contract of employment. that occurred no later than the rt'.ceipt of the solicitor's letter of 8 October 1996 by the respondent. Whilst it is true that on that analysis one is concerned with termination of the contract of employment and that the termination of the contract of employment arose out of the acceptance of the respondent's repudiation by the applicant, that acceptance was the direct and natural result of the repudiation and in those circumstances it is proper to regard the respondent a, initiating the termination. Bys. 291 of the lndu,trial Relations Act 1')90, a dismissal is unlawful unless it is for a valid reason. Bys. 296A, the onus of proof is cast upon the employer. In the present case, the employer, viz the respondent, has not appeared. The circumstances are that there is affidavit evidence that the directions order was served upon him. Becau,e I conducted the call- over. I am aware of my own knowledge that he did not attend at the call- ovcr. I am told by Ms Armitage for the bar table, and I accept, that the respondent did not attend at a conference conducted by Commissioner Bloomfield, pursuant to the provisions of the Act. l am informed by the Industrial Registrar's office, that the respondent wa, notified of today's proceedings in the normal way. I am informed further that a person purporting to be the respondent, telephoned the office of the Industrial Registrar. yesterday, 4 March 1997, and claimed not to have been aware until 3 March 1997 of these proceedings and indicated that he was not available. The Industrial Registrar's office approached me about that and I informed it that the person was to be informed that the proceedings would continue. I am told by the Industrial Registrar's office (and I believe) that that occurred In those circumstances it seems to me that I should treat this as a simple case where there has been no appearance at a trial and take that view that the onus of proof: s. 296A, has not been discharged. In those circumstances the dismissal wa., unlawful. The applicant was employed at a salary of $300 gross per week. Notwithstanding his best endeavours, he has received very little work since his termination. He has performed two weeks' work as a casual trolley pusher at a supermarket at $ ! 50 gross per week. He has worked for 14 weeks as a part-lime gardener at a resort at a gros, wage of $196.89 per week. The imponderables are, of course, that if the employmenl with the respondent had not unlawfully terminated in the period 2 October - 9 October 1996. it may well have come to an end in any event. It may have come to an end because the employer's business was unprofitable or because the applicant gave cause for dismissal. Ms Armitage seeks to deal with the matter of imponderables by calculating only over the period, 30 Septcmlxr 1996 to 5 March 1997, notwithstanding, that losses will be incurred or may he incurred long into the future. ~ In circumstances where the respondent has declined the opportunity to appear and give evidence about the various imponderables. it seems to be that that is entirely appropriate approach to take I accordingly assess compensation in the sum of $3544.80 There are other problems. It appears that the applicant has not been paid in respect of accrued leave. Further there are some moneys outstanding in respect of work performed on 30 September and apprehemions that tax in,talments withdrawn from hi, wages, have not been forwarded to the Australian Taxation Office. Additionally it appears from the applicant" s affidavit, that he worked quite extraordinary hours It is alleged that on average, the applicant worked 70 hours per week, commencing at 6 a.m. and finishing approximately at 6.30 p.m., that he worked half of every Saturday and occasionally on Sundays and on one occasion worked 21 hours in a day. It is asserted that no overtime was paid. I have no jurisdiction to deal with any of those matters. ! do not propose to do so. The appropriate person to deal with those matters is the Chief Industrial Inspector and my associate will inform you of the Chief Industrial Inspector", telephone numher and address, ~o that he may be approached. There is an application for costs. The Commis~ion' s power to award costs is described at s. I 06. S. I 06 vests a statutory discretion It is unfettered. It would be wrong to hamper it by principles and guidelines which go beyond an assertion that the power must be exercised after proper consideration of all relevant factors. That said, over time these has developed an attitude to the matter of cost~. The h1storv of the Commission's attitude to the matter of costs an the attitude ad~pted by the Commission in the ordinary case, has recently been reviewed by the then President in Gu/man v. Data General 144 QGIG 37f>. Having regard to the omjssion of the respondent to reply to correspondence and to attend at the conference or to attend at the trial or 21 March, 1997 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE indeed to inform the applicant that no appearance would be made, some costs have, I think, been unnecessarily incurred in consequence of unreasonable conduct of the respondent. I think the applicant should have those costs. It seems to me that the cost of taking instructions to sue would have been incurred in any event. Consistent with rejecting the claim for item I, instructions to sue, it seems to me that I should also reject the claim of $43 for the filing fee, because that would have been incurred in any event It seems to me if the respondent had been forthright about his attitude, the costs of preparing for trial, including the compulsory conference, would not have been incurred and since counsel was involved, the sum of $2060.50 should be allowed in respect of that item. Since the respondent chose not to inform the applicant that the respondent would not be attending at the conference before Commissioner Bloomfield, it seems to me that the fee on brief for attendance at the conference of $149 .50 should also be allowed. Since the respondent did not inform the applicant that no appearance would occur today, it seems to me that the fee on brief of $930.50 should be allowed In the case of $15 3 .50 for the articled clerk attending to instruct, it seems ro me that even if the respondent had notified the applicant that the respondent did not intend to appear, it would be necessary for an articled clerk to attend today for the purpose of tendering the documents and securing the default order, which ha~ now been entered. I do certify for the attendance of counsel. It seems to me that in view of the things said by the respondent when he telephoned the applicant on 9 October 1996 and indicated a claim that the applicant was an independent contractor, it was appropriate and indeed necessary to brief counsel. In those circumstances, I order that the respondent pay to the applicant the sum of $3544.80 forthwith. I order that the respondent forthwith pay to the applicant, by way of costs, the sum of $3140.50. The documentation will take a day or two to prepare. So as soon as you have a formal copy of the decision you may approach the Registrar. The Registrar will then issue you with a certificate so that you can go to the Magistrates Court and arrange to enforce the order in the ordinary way» Dated this fifth day of March, 1997. By the Commission, [L.S.] E. EW ALO, Industrial Registrar. Appearances:- Ms J. Armitage instructed by Primrose Couper Cronin Rudkin on behalf of the applicant. Operative Date: 5 March 1997 Report on decision - reinstatement (preliminary issue) Released: IO March 1997 ########################################################## 959 -- 1 of 1 --